Citation NR: 9801472
Decision Date: 01/20/98 Archive Date: 01/28/98
DOCKET NO. 94-42 802 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Detroit,
Michigan
THE ISSUES
1. Entitlement to a total rating based on individual
unemployability.
2. Entitlement to special monthly compensation based on the
need for regular aid and attendance, or by reason of being
housebound.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
Elizabeth Gallagher, Associate Counsel
INTRODUCTION
The veteran had active service from November 1941 to August
1946. He was awarded decorations including the combat
infantrymanís badge, and the Purple Heart with one oak leaf
cluster.
This matter came before the Board of Veteransí Appeals
(Board) on appeal from a January 1994 rating decision of the
Department of Veterans Affairs (VA) Regional Office in
Detroit, Michigan (RO). In November 1996, the Board remanded
this case for development of a claim for service-connection
for post-traumatic stress disorder, and for a VA examination
to determine the nature and severity of the veteranís
service-connected disabilities, and whether he needs regular
aid and attendance, or is housebound. While on remand, the
veteran notified the RO, in January 1997, that he did not
wish to pursue a claim for service connection for post-
traumatic stress disorder. Further, the RO and the Board
have been informed that, due to his weakened state, the
veteran is unable to travel to attend VA examinations at a VA
medical facility. Therefore, in order to obtain necessary
medical information concerning the veteranís disabilities,
the Board has determined that this case must be remanded
again so that fee based VA examinations can be conducted at
the extended care facility where the veteran resides.
REMAND
The veteran received a severe penetrating gunshot wound to
the medial portion of his left thigh in 1945 in combat at
Luzon in the Philippines. The wound resulted in complete
paralysis of the left sciatic nerve, causalgia of the left
foot, and weakness of the entire left leg. He underwent
resection of a left sciatic neuroma, a left lumbar
sympathetic nerve block, and a left lumbar sympathectomy.
Due to his left leg injury, he received a certificate of
discharge for disability.
Following his discharge from service, the veteran was able to
obtain employment with a fellow veteran, working in the field
of electronics repair. He retired from that employment in
July 1984.
The veteran is service-connected for complete paralysis of
the left sciatic nerve, secondary to a gunshot wound to the
left thigh, rated as 80 percent disabling; damage to Muscle
Group XIII due to a gunshot wound to the left thigh, rated as
30 percent disabling; a scar, residual to a left lumbar
sympathectomy, rated as 10 percent disabling; psoriasis of
the hands, rated as 10 percent disabling; and for malaria and
a hook worm infection, both rated as zero percent disabling.
The veteranís combined disability rating is 90 percent. He
is entitled to special monthly compensation on account of the
loss of use of his left foot.
In addition to his service-connected disabilities, the
veteran has developed coronary artery disease, hypertension,
and osteoarthritis, and has had cerebro-vascular accidents
affecting both sides of his body. Prior to January 1997, he
was able to walk with the use of a walker, albeit with some
difficulty. However, in January 1997, he fell and sustained
fractures of his left medial malleolus, left posterior distal
tibia, and right proximal fibula. It has been asserted that
the veteranís fall was due to his service-connected left
lower extremity disabilities. The veteran had a history of
prior strokes, and it was noted at his hospital admission
after his January 1997 fall that he had slight slurring of
speech. However, the Board notes that the veteran had
difficulty speaking at least as early as February 1992, and
that there was no mention of any symptoms attributable to a
very recent cerebro-vascular accident at the time of his
January 1997 fall.
As of late January 1997, the veteran has been residing at the
Kith Haven Extended Care facility in Flint, Michigan. As of
April 1997, he was unable to rise to a standing position
without the assistance of two persons and, once on his feet,
could only take 5 to 8 steps with assistance before having to
return to his wheelchair. His upper extremities are noted to
be weak, and it is reported that he is unable to dress, or
feed himself, or use the bathroom facilities without
considerable assistance.
In order to render an equitable decision on the veteranís
appeal, it will be necessary to ascertain which functional
limitations are due to his service-connected disabilities,
and which are due to his other health problems, to obtain
medical information concerning his employability, and to
determine whether he needs the regular aid and attendance of
another person, or is housebound, exclusively due to his
service-connected disabilities. As the veteran is too ill to
attend examinations at a VA medical facility, it will be
necessary for the VA to send a physician or physicians to the
veteranís location to examine him on-site.
Therefore, the instant case is REMANDED to the RO for the
following actions:
1. The veteran must be afforded fee
based VA medical examinations for the
purpose of determining the current nature
and severity of his service-connected
disabilities, and to ascertain his need
for aid and attendance and housebound
benefits due to those service-connected
disabilities. Copies of all pertinent
records from the claims folder, to
include all service medical records,
prior VA compensation examinations, and
copy of this Remand, must be made
available to, and be reviewed by, the
examining physician(s) prior to the
examinations for proper consideration of
the medical history. All necessary tests
and studies should be accomplished.
Manifestations of each service-connected
disability must be fully set forth and
the functional limitations imposed
thereby must be fully assessed and
differentiated from those attributable to
nonservice-connected disorders. Each
examiner must comment upon the effects of
service-connected disabilities, alone,
upon the veteranís abilities to dress
himself, to keep himself ordinarily clean
and presentable, adjust any special
prosthetic or orthopedic appliances, and
the frequency of any such adjustment,
feed himself, attend to urinary and bowel
function, and protect himself from the
hazards or dangers incident to his daily
environment. Additionally, findings must
be made by the examiners as to whether
service-connected disabilities actually
require that the veteran remain in bed
and whether he is substantially confined
to his dwelling and its immediate
premises as a direct result of service-
connected disabilities. The examiners
must complete a VA Form 21-2680,
Examination for Housebound Status or
Permanent Need for Aid and Attendance,
and must indicate the etiology of any
limitation observed.
With respect to any musculoskeletal
disorder, the examination report must, in
accordance with DeLuca v. Brown, 8
Vet.App. 202 (1995), also cover any
weakened movement against varying
resistance, excess fatigability with use,
incoordination, painful motion, pain with
use, and provide an opinion as to how
these factors result in any limitation of
motion. If the veteran describes flare-
ups of pain, the examiner must offer an
opinion as to whether there would be
additional limits on functional ability
during flare-ups, and if feasible,
express this in terms of additional
degrees of limitation of motion during
the flare-ups. If the examiner is unable
to offer an opinion as to the nature and
extent of any additional disability
during a flare-up, that fact should be so
stated.
Finally, the examiners must offer
opinions as to the following questions:
1) whether it is at least as likely as
not that the residuals of the veteranís
severe gunshot wound to the left thigh,
and subsequent surgeries in that area,
include circulatory impairment which is
related to his development of coronary
artery disease, or his cerebro-vascular
accidents; and 2) whether it is at least
as likely as not that the veteranís
January 1997 fall was causally related to
his left lower extremity gunshot wound
residuals. A complete rationale must be
given for each conclusion and opinion
expressed. The examination reports
should be typed.
2. After the development requested has
been completed, the RO should review the
examination reports to ensure that they
are in complete compliance with the
directives of this REMAND. If the
reports are deficient in any manner, the
RO must implement corrective procedures
at once.
After the development requested above has been completed, to
the extent possible, the RO should again review the record.
If any benefit sought on appeal, for which a notice of
disagreement has been filed, remains denied, the veteran, and
his representative, if any, should be furnished a
supplemental statement of the case and given the appropriate
opportunity to respond thereto. Thereafter, the case should
be returned to the Board, if in order. The Board intimates
no opinion as to the ultimate outcome of this case. The
veteran need take no action until otherwise notified.
DEREK R. BROWN
Member, Board of Veterans' Appeals
Under 38 U.S.C.A. ß 7252 (West 1991), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Veterans Appeals. This remand is in the nature of a
preliminary order and does not constitute a decision of the
Board on the merits of your appeal. 38 C.F.R. ß 20.1100(b)
(1997).
- 2 -